Hanna v. Margitan

• Citation: 373 P.3d 300,193 Wash.App. 596
• Decision Date: 28 April 2016
• Docket Number: No. 33159–8–III.,33159–8–III.
• Parties: Mark and Jennifer HANNA, husband and wife, Appellants, v. Allan and Gina MARGITAN, husband and wife, and Inland Power and Light Co., Harold L. and Patricia Crowston, husband and wife, Dan R. Bond, D.M. and A. Bond, Ryken Living Trust, Steve and Shannon Moser, husband and wife, Drew Bond and Avista Corporation, Respondents.
• Court: Court of Appeals of Washington

193 Wash.App. 596

373 P.3d 300

Mark and Jennifer HANNA, husband and wife, Appellants

v.Allan and Gina MARGITAN, husband and wife, and Inland Power and Light Co., Harold L. and Patricia Crowston, husband and wife, Dan R. Bond, D.M. and A. Bond, Ryken Living Trust, Steve and Shannon Moser, husband and wife, Drew Bond and Avista Corporation, Respondents.

No. 33159–8–III.

Court of Appeals of Washington, Division 3.

April 28, 2016.

Stanley Edward Perdue, Attorney at Law, Galisteo, NM, for Appellants.

J. Gregory Lockwood, J. Gregory Lockwood PLLC, David Ernest Eash, Ewing Anderson, P.S., Lawrence W. Garvin, Workland & Witherspoon, Gregory C. Hesler, Avista Corporation, Geoffrey F. Palachuk, Paine Hamblen LLP, Peter A. Witherspoon, William Christopher Schroeder, David A. Kulisch, Attorney at Law, Spokane, WA, for Respondents.

LAWRENCE–BERRY, J.

¶ 1 Mark and Jennifer Hanna (the Hannas) appeal the trial court's summary judgment order and award of attorney fees and costs to respondents. The trial court ruled that respondents' easements over the Hannas' lot were valid, and awarded respondents their reasonable attorney fees and costs for defending what it found to be a frivolous action. The Hannas contend: (1) easements that preexist a short plat, but which are not depicted thereon, are extinguished by operation of law; (2) because such easements are extinguished, they cannot be revived because the Land Use Petition Act (LUPA), chapter 36.70C RCW, decisions are final if not timely appealed; (3) after a short plat is recorded, one cannot add a private easement without formally amending the short plat; (4) the two 2002 private road easements in favor of Allan and Gina Margitan (the Margitans) are ineffective because they lack a present intent to convey; (5) the Margitans violated the short plat by building their house outside the building area depicted on the short plat; and (6) the trial court abused its discretion in awarding the respondents attorney fees and costs under RCW 4.84.185

. With the exception of portions of their sixth argument, we disagree with the Hannas' contentions. We conclude that the Hannas' claims against the Margitans and Inland Power & Light were not frivolous, and the trial court abused its discretion in awarding those parties attorney fees and costs under RCW 4.84.185

. In all other respects, we affirm. We deny the respondents' requests for attorney fees on appeal.

FACTS

¶ 2 Prior to the short: subdivision that created Short Plat 1227–00, multiple easements were recorded that affected the property later owned by the Hannas. For instance, Avista Corporation's predecessor recorded multiple water storage and water overflow easements affecting the property. In addition, a “switchback” road crosses the property, and Harold and Patricia Crowston, Dan R. and Mary Ann Bond, Dan M. Bond and Annette Bond, Steve and Shannon Moser, and the Ryken Living Trust (collectively “the switchback road users”) have recorded easements that permit them to use the switchback road for access to their properties.

¶ 3 In May 2000, Spokane County (the County) granted Marion Bond's short subdivision application, thereby approving the division of his property into Parcel 1, Parcel 2, and Parcel 3. Access to the subdivision is from the south. The southernmost lot is Parcel 1, Parcel 2 is in the middle, and Parcel 3 is northernmost. A lake used for recreation is located beyond the subdivision, to the northeast.

¶ 4 The first page of the County's findings of fact, conclusions, and decision makes reference to the switchback road:

There is an existing easement located on the site that serves the residence at [Parcel 3].... It is noted that the legal description for this easement does not match the field location of the existing road per surveyor comments on the proposed preliminary plat map. The applicant is proposing an additional access easement to serve [Parcel 1 and Parcel 2].

Clerk's Papers (CP) at 364 (emphasis added). The decision indicates that “[t]he final short plat shall be designed substantially in conformance with the preliminary short plat of record.” CP at 366, Additionally, the preliminary short plat shows a proposed 40–foot easement along the westernmost portion of Parcel 1 and Parcel 2. Because the easement extends along the entire western side of Parcel 2, we construe it as also benefiting Parcel 3.

¶ 5 The approved short plat was recorded on March 11, 2002. The short plat depicted the 40–foot easement, but the existing switchback road easement was absent. Avista's water storage and water overflow easements were not included in either the preliminary short plat or the short plat. According to the County's director of planning, the County's findings of fact, conclusions, and decision regarding Short Plat 1227–00 did not address or impact the preexisting easements, and the short plat is essentially a pictorial depiction of the County's approval (i.e., the required depictions and notes for approval of the subdivision).

¶ 6 The Margitans purchased Parcel 1 from Ms. Bond on April 6, 2002. Ms. Bond granted the Margitans two private road easements across Parcel 2 and Parcel 3 “along that portion of the presently existing [switchback road] which travels in a northwesterly direction then turns back and travels in a southeasterly direction.”¹ CP at 710. The two private road easements were recorded April 17, 2002. The Hannas purchased Parcel 2 from Ms. Bond on May 2, 2002. The Hannas' title report indicated that Parcel 2 was encumbered by multiple easements, including Avista's water storage and water overflow easements, the easement or easements benefiting the switchback road users, and the Margitans' two private road easements.

¶ 7 In late June 2002, the Hannas granted Inland Power & Light a right-of-way easement to construct an electrical system, and keep the system clear of obstructions along a 10–foot wide path. The legal description of the easement broadly states, “Lot [sic] 2 of Short Plat 1227–00.” CP at 384. The easement was recorded on March 25, 2003.

¶ 8 On February 1, 2010, the Margitans acquired Parcel 3 of Short Plat 1227–00. At the time of the approval of Short Plat 1227–00, Parcel 3 had an existing structure. The County's findings of fact, conclusions, and decision approving Short Plat 1227–00 states: “The site is currently undeveloped with the exception of the existing residence, boathouse and dock.” CP at 364. The County director of planning later indicated that the existing structure was “grandfathered” into Short Plat 1227–00. CP at 490. On October 3, 2011, the Margitans were granted a permit to demolish and rebuild a portion of the grandfathered structure on Parcel 3. The permit did not constrain the new structure to the footprint of the grandfathered structure.

¶ 9 On October 12, 2012, the Hannas filed a quiet title complaint against the Margitans. The Hannas sought a declaration that the Margitans' two private road easements along the switchback road were invalid, either because they did not show a present intent to convey property, or because they were ineffective attempts to alter the short plat without formal amendment, as required by RCW 58.17.215

.

¶ 10 On February 21, 2013, the Hannas moved for partial summary judgment, seeking an order that (1) the only easement was the 40–foot easement across the westernmost portions of Parcel 1 and Parcel 2, depicted on the face of the short plat, and (2) the short plat was a land use decision, unreviewable under LUPA's statute of limitations. On May 24, 2013, the trial court entered an order that stated:

1. Plaintiffs' Motion for Partial Summary Judgment is GRANTED in part. There is no question of material fact that Short Plat 1227–00 in Spokane County depicts only a single 40 foot wide easement on its face. As a matter of law, the Land Use Petition Act (“LUPA”) applies to Short Plat 1227–00 inasmuch as the approval of Short Plat 1227–00 in March of 2002 was a land use decision and no appeal, under LUPA, was made of the land use decision approving the Short Plat 1227–00 and hence the Short Plat became a valid short plat. No amendments or modifications have occurred to Short Plat 1227–00 since it was created in 2002. Plaintiffs' motion is DENIED in part as to whether the Short Plat extinguishes pre-existing easements.

CP at 260–61.

¶ 11 Inland Power & Light intervened on August 26, 2013. After Inland Power & Light's motion to add indispensable parties, the Hannas filed an amended complaint that included Avista and the switchback road users. The Hannas' amended complaint also alleged that the Margitans violated the building restrictions of Parcel 3 contained in the short plat. On October 13, 2014, Inland Power & Light moved for summary judgment on the basis that LUPA does not affect preexisting or subsequently granted easements. The Hannas moved for summary judgment on October 21, 2014, arguing that the creation of the final short plat map was a LUPA land use decision that extinguished the preexisting easements, no easement could be added over Parcel 2 without amending the final short plat map, all the defendants and the intervenor failed to appeal the LUPA land use decision within 21 days, and the Margitans constructed permanent structures outside the building area of Parcel 3. In December 2014, Avista, the Margitans, and the switchback road users moved for summary judgment on similar grounds as Inland Power & Light. The Margitans also argued that the Hannas could not challenge the remodel permit for Parcel 3 because the LUPA statute of limitations had passed.

¶ 12 The trial court granted summary judgment dismissal of the Hannas' claims against all of the respondents. After the trial court entered summary judgment, the respondents moved for attorney fees and costs pursuant to RCW 4.84.185

, asserting that the dismissed claims were frivolous. The trial court granted the motions. The individual orders in favor of Inland Power & Light, the switchback road users, and the...